State v. Moyers

• Decision Date: 25 June 1912
• Citation: 155 Iowa 678,136 N.W. 896
• Parties: STATE v. MOYERS.
• Court: Iowa Supreme Court

155 Iowa 678

136 N.W. 896

STATE

v.MOYERS.

Supreme Court of Iowa.

June 25, 1912.

Appeal from District Court, Des Moines County; James D. Smyth, Judge.

In a prosecution before a justice of the peace defendant was accused of using nets unlawfully in the waters of Iowa, to wit, in the Mississippi river, for that defendant in Des Moines county did willfully, unlawfully, and feloniously take from the waters of the Mississippi river within the jurisdiction of the state of Iowa a certain fish, etc., with a hoop net, without first having procured from the state fish and game warden of Iowa an annual license for the use of said net. On a trial before the justice of the peace, the defendant was found guilty and adjudged to pay a fine, from which judgment he appealed to the district court of Des Moines county. On a trial in that court it appeared conclusively that defendant had taken fish with a net from that portion of the Mississippi river lying east of Des Moines county without having first procured a license under the laws of this state, but there was a conflict in the evidence as to whether the act was done west or east of the center of the main navigable channel of said river. No evidence was offered showing, or tending to show, the laws or regulations of the state of Illinois as to fishing in the Mississippi river. At the conclusion of the evidence the court instructed the jury that defendant could be convicted only on finding that he had taken fish with a net without a license from that portion of the waters of the Mississippi river on the westerly or Iowa side of the middle of the main navigable channel of said river and within the limits of Des Moines county. There was a verdict for defendant, and he was discharged from custody. From this judgment, the state appeals. Reversed.George Cosson, Atty. Gen., and C. A. Robbins and John Fletcher, Asst. Atty. Gens., for the State.

La Monte Cowles, of Burlington, and James K. Allen, for appellee.

McCLAIN, C. J.

In the provisions of the Code regulating the taking of fish in the waters of the state there is a general exception excluding the waters of the Mississippi river (and certain boundary rivers) from such regulations. Code, § 2547. But in 1909 a statute was enacted providing that in the boundary rivers thus enumerated there should be no fishing with nets or seines without first procuring from the fish and game warden of this state an annual license for the use of such nets and seines, the license fee being fixed by the statute, and the taking by any person of fish of a certain description from said rivers except by hook and line during a specified portion of the year was also prohibited. See chapter 155, Acts of 33d Gen. Assem., as amended by chapter 117, Acts 34th Gen. Assem. Prior to the enactment of these statutes, the laws of the state regulating fishing were not applicable to the navigable boundary rivers of the state which were subject to the concurrent jurisdiction of adjoining states. Little v. Green, 144 Iowa, 492, 123 N. W. 367, 25 L. R. A. (N. S.) 649. In the statutes last cited this state has attempted for the first time to regulate fishing in these boundary rivers, and the question now presented is whether the state may legislate in regard to fishing in such rivers in the exercise of the concurrent jurisdiction vested in it; that is to say, the question is whether, in the exercise of such concurrent jurisdiction, the state may regulate the taking of fish in the Mississippi river and punish a violation of its statutes, although such violation is committed beyond the middle of the main navigable channel of such river, the middle of the navigable channel being the boundary line between this state and the state of Illinois. See preamble to the Constitution, wherein the boundaries of the state are described in accordance with the act of Congress admitting the state into the Union.

The concurrent jurisdiction of this state over the waters of the Mississippi river without regard to the boundary line between this state and any adjoining state which is asserted in Code, § 3, is dependent upon the act of Congress admitting the state into the Union, which contains the following provision: “The said state of Iowa shall have concurrent jurisdiction on the river Mississippi and every other river bordering on the said state of Iowa, so far as the said rivers shall form a common boundary to said state, and any other state or states now or hereafter to be formed or bounded by the same; such rivers to be common to both.” Act March 3, 1845, c. 48, 5 Stat. 742, amended as to boundaries by Act Aug. 4, 1846, c. 82, 9 Stat. 52. A similar provision was found in the statute for the admission of the state of Illinois (Act April 18, 1818, c. 67, 3 Stat. 429), and the concurrent jurisdiction of Iowa and Illinois over the Mississippi river so far as it constitutes the boundary between the two states is dependent upon these provisions. In applying them it has been held by this court that the jurisdiction of this state does not extend to abatement of a nuisance on the Illinois side of the river consisting of a permanent structure on that side (Gilbert v. Moline Water Power & Mfg. Co., 19 Iowa, 319;Buck v. Ellenbolt, 84 Iowa, 394, 51 N. W. 22, 15 L. R. A. 187), but does extend to a criminal nuisance committed on a boat in the river, although such boat was at the time moored to the Illinois shore (State v. Mullen, 35 Iowa, 199). The case last cited is relied upon by the state as sustaining its jurisdiction to regulate the taking of fish in the waters of the river in any portion thereof between the Iowa bank and the Illinois bank of the stream. And it must be conceded that this contention is strongly supported by the case last cited; for, if the Legislature of Iowa may by statute determine what is a nuisance and provide for the punishment of a violation of such statute committed anywhere on the waters of the river between the two states, then it may prescribe what shall constitute the unlawful taking of fish in any portion of the river and punish the violation of such statute, although committed outside of the boundaries of the state; that is, east of the middle line of the main channel. On the other hand, it must be admitted that a serious question is here involved, for, if the contention of the state is to be sustained, then those persons who on the Illinois side of the river engage in the business of fishing in full compliance with the laws of Illinois may nevertheless be subject to punishment if they have not also complied with the laws of Iowa. Taking this case for an illustration, and assuming that there is a statute in Illinois similar to that of this state requiring the payment of an annual license for exercising the privilege of taking fish with nets, one who has fully complied with the Illinois statute by paying the annual license which may be required by the laws of that state would still be punishable under the laws of Iowa if he had not complied with our statute by paying the annual license required by the laws of this state.

This exact question has been fully considered by the Supreme Court of Wisconsin in the case of Roberts v. Fullerton, 117 Wis. 222, 93 N. W. 1111, 65 L. R. A. 953. In that case the conclusion of the majority of the court was that, under provisions as to concurrent jurisdiction similar to those involved in our own case of State v. Mullen, the states of Minnesota and Wisconsin could regulate fishing in that portion of the Mississippi river forming the boundary between the two states only so far as the waters of the river were within the actual territorial limits of the state; that is to say, the...